Existing residents sometimes consider nursing homes, adult assisted living facilities, and group homes ("Facilities") undesirable neighbors. Facility operators should know that, in many cases, Facilities may legally be located in existing residential neighborhoods notwithstanding zoning regulations or restrictive covenants to the contrary.
Every county has local zoning regulations, which generally provide for orderly development, and which designate certain areas to be residential in nature. Some zones are limited to single-family type uses (e.g., single-family houses, townhouses, etc.), while others permit multifamily uses (e.g., apartment buildings). With respect to some types of group homes, Maryland law overrides local zoning regulations and permits them to be located in residential areas. Small private group homes (defined as serving between four and eight persons with mental disorders) are deemed to be single family dwellings and are permitted in all residential zones; large private group homes (between nine and sixteen persons) are deemed multifamily dwellings and are permitted in all residential zones of similar density. Group homes serving between four and eight developmentally disabled persons are similarly permitted in all residential zones. The state statutes make clear, however, that group homes are not exempt from zoning and other rules generally applicable to all homes in that area, e.g., building code requirements.
Elder care and nursing home facilities are not similarly exempted from local zoning regulations by state law. Such facilities must turn for relief to the federal Fair Housing Act ("FHA") and its Maryland analogue. Courts applying the FHA to zoning decisions with respect to elder care and nursing home facilities generally find that zoning ordinances can't be used as a basis for a blanket exclusion of such facilities--a jurisdiction must generally grant a variance or otherwise create an exception for housing benefiting the handicapped unless there is a clear nondiscriminatory reason for not doing so. The FHA does not exempt the Facilities from being generally compatible with the nature and character of the neighborhood, however, nor does it exempt Facilities from rules of general applicability covering properties in that zone, including, for example, building code requirements.
Restrictive covenants are another matter entirely. Unlike some other states, e.g., California, Maryland does not have a statute that attempts to override existing restrictive covenants in the way that the Health-General statutes cited above override local zoning regulations. That said, however, the FHA and its Maryland analogue generally, but not in all cases, will have that effect.
The FHA (and its Maryland analogue) provide that it is unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to a buyer or renter because of a handicap of the buyer or renter, or of a person who will live in the dwelling after it is sold, rented, or otherwise made available. Courts interpreting that provision have generally held that this prevents both restrictive covenants that specifically target Facilities, and restrictive covenants that would have the effect of barring Facilities, from being enforceable. Thus, a Facility operator will frequently have as a good defense to a claim that the Facility would violate a restrictive covenant applicable to its intended site the argument that the Fair Housing Act renders the restrictive covenant unenforceable.
Both the federal and the state statute, however, contain certain exemptions from their coverage. Maximum occupancy restrictions that are enforced equally against the handicapped and non-handicapped do not violate the FHA. Housing for elderly persons may exclude persons with children if it meets certain statutory requirements. Also excluded are single family homes, if sold or rented by their owner without the services of a real estate agent or listing service and without advertising that would independently be a violation of the FHA, and if the owner owns fewer than three single-family homes at the relevant time. If the intended site or the regulation at issue falls within one of those exemptions, then the enforceability of the restrictive covenant may have to be litigated. The same would be true with respect to zoning regulations.
One final point: existing residents unhappy at the thought of a Facility locating in their neighborhood may speak out or take action to prevent that from happening. Public speeches, paid advertising, marches and picket signs, complaints to public officials, and lawsuits and other legal challenges can be unpleasant or uncomfortable experiences, and can require that the Facility operator expend resources defending its right to locate in a particular neighborhood. Nevertheless, Facility operators should remember that, so long as the speech made and actions taken by the existing residents are not independently unlawful (e.g., vandalism, threats of physical violence, property damage), such actions are protected by the First Amendment, and Facility operators generally will not be able to hold existing residents liable for such activities.
For more information about this article or other issues relating to assisted living facilities, contact Ferrier R. Stillman at 410-/752-9731.